Under the U.S. Supreme Court: Plaintiffs still pound Walmart

WASHINGTON, June 10 (UPI) -- If you thought the Walmart sex discrimination fight was over when the U.S. Supreme Court broke the massive class action suit last year, saying the company had the right to fight the allegations case by case, you thought wrongly.

The attorneys for that broken class action announced last week nearly 2,000 former and current Walmart employees have filed pay- and promotion-discrimination complaints against the retail giant with the U.S. Equal Employment Opportunity Commission.

One of those attorneys, Joseph Sellers, said the structure of the case has changed considerably from the class action.

"These charges were prepared with the assistance of counsel around the country," Sellers, in San Francisco for a Walmart hearing, said by phone. "From what I understand from the [lawyers] who worked with the women, they are fairly compelling charges" that reveal "patterns ... of underlying bias."

Sellers said some of the women were told directly, "Men have families to support," as a justification for higher pay for men. Others "ended up training the [male supervisor] who was selected [for promotion] and had less experience than they did."

In any case it will be harder for the company to reject the charges "when you're dealing with several thousand people," he said.

Walmart downplays the 2,000 complaints in comparison with the millions of women said to be represented in the class action.

The company went on record in an e-mail to United Press International saying the women filing the latest complaints deserved to have their allegations heard -- individually.

"As we have said all along, any individual who feels they have been treated unfairly and files timely charges with the EEOC should have the opportunity to have their individual claim heard," the e-mail said. "This shows the system works. The Supreme Court ruling made it clear that these claims are unsuitable for class treatment because the situations of each individual are so different."

Still, the issue of workplace sex discrimination against women threatens to become a partisan issue in a presidential election year. Only a day before the attorneys made their announcement, the Paycheck Fairness Act went down on a procedural vote in the U.S. Senate.

Democrats, under Senate rules, needed 60 votes to bring the proposed act to the floor. The procedural vote went along strict party lines, 52-47, with the two independent senators voting with Democrats and Sen. Mark Kirk, R-Ill., not voting,

"Senate Republicans refused to allow an up-or-down vote on the Paycheck Fairness Act, a commonsense piece of legislation that would strengthen the Equal Pay Act and give women more tools to fight pay discrimination," Obama said in a statement released by the White House. "It is incredibly disappointing that in this make-or-break moment for the middle class, Senate Republicans put partisan politics ahead of American women and their families. Despite the progress that has been made over the years, women continue to earn substantially less than men for performing the same work."

The massive class action suit had its roots in 2001, when a suit was filed on behalf of six women in San Francisco who claimed Walmart discrimination, in part because they were passed over for promotion in favor of men. One of the six said she was told by company superiors, "It's a man's world."

The basic claim in the failed class action suit was that Walmart maintains a common culture -- "the Walmart Way" -- to ensure uniformity in its 3,400 stores, but the corporate headquarters gives local store managers unlimited discretion to decide pay and promotions -- resulting in lower pay and fewer promotions for women.

A federal judge and a federal appeals court approved the class action.

But in a brief to the Supreme Court, Walmart successfully argued it was not being given a fair chance to defend itself.

"This nationwide class includes every woman employed for any period of time over the past decade, in any of Walmart's approximately 3,400 separately managed stores, 41 regions and 400 districts, and who held positions in any of approximately 53 departments and 170 different job classifications," the company's brief said. "The millions of class members collectively seek billions of dollars in monetary relief under Title VII of the Civil Rights Act of 1964, claiming that tens of thousands of Walmart managers inflicted monetary injury on each and every individual class member in the same manner by intentionally discriminating against them because of their sex, in violation of the company's express anti-discrimination policy."

That argument carried weight with the conservative majority on the Supreme Court, which ruled 5-4 along the high court's ideological fault line last June.

In the majority opinion written by Justice Clarence Thomas, the conservative justices said when plaintiffs seek individual relief such as back pay or reinstatement, the company has "the right to raise any individual affirmative defenses it may have, and to 'demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.'"

In approving the massive class, the appeals court tried to replace this procedure with a "Trial by Formula," the opinion said, using a "sample set," with the result applied to the huge class. "We disapprove that novel project."

The court's four liberals agreed that the lower court had to be reversed, but issued a partial dissent written by Justice Ruth Bader Ginsburg.

Ginsburg, who practically argued the concept of gender discrimination into law as a brilliant attorney in the 1970s, said the high court majority mistakenly "disqualifies the class at the starting gate, holding that the plaintiffs cannot cross the 'commonality' line set by" the Federal Rules of Civil Procedure, without giving the plaintiffs a chance to prove they can cross that line.

After the ruling, Walmart hailed the "end" of the class action in a statement issued from the company's Bentonville, Ark., headquarters by Gizel Ruiz, Walmart U.S. executive vice president for people.

"We are pleased with today's ruling and believe the court made the right decision," the statement said. "Walmart has had strong policies against discrimination for many years. The court today unanimously rejected class certification and, as the majority made clear, the plaintiffs' claims were worlds away from showing a companywide discriminatory pay and promotion policy.

The class action may have ended, but the allegations by individual women against Walmart continue.

The co-lead counsel for the women, Brad Seligman of the non-profit Impact Fund and Sellers, based in California and part of Washington's Cohen Milstein Sellers & Toll PLLC, said in a statement the 1,975 EEOC complaints were filed in 48 states, and involve every Walmart retail region in the United States.

"The fact that EEOC charges were filed in every single Walmart region in the nation demonstrates the widespread and pervasive nature of Walmart's pay and promotion discrimination against its women employees," Seligman said.

The EEOC enforces federal laws banning employment discrimination. By filing EEOC complaints against Walmart and its subsidiary Sam's Club dating back to Dec. 26, 1998, the women plaintiffs protect their right to sue over pay and promotion discrimination even though the Supreme Court reversed the class certification.

Florida leads the list of current EEOC filings with 284 claims, the statement said -- followed by Alabama with 142 and Georgia with 119. Except for Montana and Vermont, all other states had at least one EEOC charge filed against Walmart.

"That nearly 2,000 women across the country have filed charges over the past year making similar claims of sex discrimination against Wal-Mart is a striking testament that the problems that gave rise to the original case are ongoing and that the evidence of discrimination remains widespread," Seligman said.

Regional class action lawsuits on behalf of women plaintiffs who worked in the California and Texas region Walmart stores were filed in federal courts in those states in October 2011, with an expanded class action lawsuit -- Odle vs. Wal-Mart Stores, Inc. -- filed in Texas federal court last January.

The California regional class action already was the subject of a dismissal hearing in San Francisco.

The attorneys' statement said numerous other class action lawsuits are expected to be filed in other states throughout the year.

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